JUDGMENT - QAZI M.M., J.:—The mining lease for iron ore over 515-00 acres (= 321-89 hectares) in village Lohara in Bramhapuri Tahsil of Chandrapur District was originally granted to M/s. SICOM vide Government order dated 31-10-1974 for 20 years. The lease was executed on 17-6-1975. The lease was subsequently transferred in favour of the petitioner by an agreement dated 6-1-1977. However, possession of the land under lease was not delivered at the time of execution of the agreement. The Collector, Chandrapur, wrote a letter to the petitioner on 15/18-1-1977 (Annexure C) in respect of two mining leases; one regarding Lohara (referred supra) and another regarding Asola mine, both situated in Bramhapuri Tahsil of Chandrapur District, asking the petitioner to make necessary arrangement for taking over possession of the lands under leases immediately. The Collector also directed the Tahsildar, Bramhapuri, and the Divisional Forest Officer (East) Chanda Division, to hand over possession of the lands under leases to the petitioner. It may be clarified here that in the present petition we are concerned with the mining lease of Lohara only. However, in spite of the letter of the Collector, Chandrapur, the petitioner did not get possession of the Lohara mine. 2. As the petitioner did not got possession of the Lohara mine, they wrote to the Divisional Forest Officer, Chandrapur, vide letter dated 1-7-1977 to hand over possession of the Lohara mine. Since there was no response, the petitioner sent a reminder on 4-3-1977 to the Divisional Forest Officer requesting him to deliver possession of the Lohara mine. The Divisional Forest Officer vide letter dated 26-9-1977 requested the Conservator of Forests, Chandrapur, to move the Chief Conservator of Forests for issuing instructions in the matter as the party concerned was pressing hard. The petitioner also wrote to the Chief Conservator of Forests, Pune, vide letter dated 6-10-1977 to help them to get possession of the Lohara mine immediately. Two reminders dated 29-10-1977 and 9-11-1977 were also sent by the petitioner to the Chief Conservator of Forests, Pune, in this behalf. The Chief Conservator of Forests vide letter dated 7-11-1977 informed the petitioner that the matter has been referred to the Government in Revenue and Forests Department and the orders were awaited. On 1-10-1981 the petitioner again wrote to the Joint Secretary to Government of Maharashtra, Bombay, to take urgent steps in the matter of delivery of possession of Lohara mine. 3. On 1-10-1981 the petitioner again wrote to the Joint Secretary to Government of Maharashtra, Bombay, to take urgent steps in the matter of delivery of possession of Lohara mine. 3. While the petitioner was trying its best to get possession of the Lohara mine in pursuance of the lease-deed dated 17-6-1975, the petitioner received a demand notice dated 11-3-1986 from the Collector, Chandrapur, demanding an amount of Rs. 79,980-90 towards the dead rent and interest upto 31-12-1985 thereon since 1980 to 1986, in respect of the iron ore mining lease at Lohara. It was further indicated that the same was liable to be recovered as arrears of land revenue. Hence this petition. 4. Mr. Modak appearing on behalf of the petitioner has argued that since the possession of the land comprising of Lohara mine has not been handed over to the petitioner, the Collector is not entitled to recover anything by way of dead rent. The petitioner has done everything on its part to get possession of the land under lease from the respondents, but without any success inspite of its best efforts and hence it could not be held liable for the dead rent. According to Mr. Modak, the petitioner would be liable for the dead rent only in the event of any fault on its part in carrying on the mining operations after the receipt of the possession of the land. 5. The respondents have contested the claim of the petitioner. According to them, the petitioner is liable to pay the dead rent under section 9-A of the Mines and Minerals (Regulation and Development) Act, 1957. 5. The respondents have contested the claim of the petitioner. According to them, the petitioner is liable to pay the dead rent under section 9-A of the Mines and Minerals (Regulation and Development) Act, 1957. Section 9-A reads as under--- "9-A(1) The holder of a mining lease, whether granted before or after the commencement of the Mines and Minerals (Regulation and Development) Amendment Act, 1972, shall notwithstanding anything contained in the instrument of lease or in any other law for the time being in force, pay to the State Government, every year, dead rent at such rate as may be specified, for the time being in the Third Schedule, for all the areas included in the instrument of lease: Provided that where the holder of such mining lease becomes liable under section 9, to pay royalty for any mineral removed or consumed by him or by his agent, manager, employee, contractor or sub-lessee from leased area he shall be liable to pay either such royalty or the dead rent in respect of that area, whichever is greater. xxx xxx xxx xxx xxx xxx" Relying on this provision, it has been submitted on behalf of the respondents that the petitioner is liable to pay the dead rent every year irrespective of possession of the land. According to the respondents, the liability to pay dead rent or royalty, whoever is more, commences as soon as the lease-deed is executed. 6. We have given our anxious consideration to the aspect as to whether the petitioner is liable to pay dead rent, notwithstanding the fact that it has not received possession of the land. It is true that section 9-A lays responsibility on the holder of the mining lease of paying the dead rent, as may be specified, for the time being in the Third Schedule, notwithstanding anything contained in the instrument of lease or in any other law for the time being in force. But, in our view, in the peculiar facts and circumstances of this case, it is not possible to hold that the holder of a mining lease would be responsible for payment of dead rent. We have shown above that ever since the lease-deed was executed, the petitioner was trying to get possession of the land from the respondents. But, in our view, in the peculiar facts and circumstances of this case, it is not possible to hold that the holder of a mining lease would be responsible for payment of dead rent. We have shown above that ever since the lease-deed was executed, the petitioner was trying to get possession of the land from the respondents. We have already referred above the various communications addressed by the petitioner to the Secretary to the Government as also the Forest Authorities, but the fact remains that the petitioner did not get possession of the land till this date. In view of this background, to hold that the petitioner would be liable to pay the dead rent would amount to punish the petitioner for no fault on its part. It would also amount to putting premium on the callous attitude of the respondents in not fulfilling their legal obligation of handing over possession of the land to the petitioner. It is not the case of the respondents that there is a specific condition in the agreement of lease that the holder of the mining lease would be liable to pay the dead rent as soon as the lease-deed is executed, notwithstanding that possession is not delivered. The only defence seems to be section 9-A of the Mines and Minerals (Regulation and Development) Act, 1957, to which we have already referred supra. 7. Our attention was invited to the letter dated 20th November, 1984 addressed by the Collector, Chandrapur, to the Senior Labour Welfare Officer, of the petitioner, demanding payment of dead rent. There is a reference to Rule 27(c) of the Mineral Concession Rules, 1960, which reads thus--- "27. 7. Our attention was invited to the letter dated 20th November, 1984 addressed by the Collector, Chandrapur, to the Senior Labour Welfare Officer, of the petitioner, demanding payment of dead rent. There is a reference to Rule 27(c) of the Mineral Concession Rules, 1960, which reads thus--- "27. Conditions:--- xx xx xx xx xx xx xx xx (c) the lease shall pay, for every year, except the first year of the lease, such yearly dead rent at the rates specified in the Third Schedule and if the lease permits the working of more than one mineral in the same area, the State Government shall not charge separate dead rent in respect of each mineral: Provided that the lesses shall be liable to pay this dead rent or royalty in respect of each mineral whichever be higher in amount but not both;" In our view the idea of holding the holder of the mining lease responsible for the payment of dead rent must be; if after execution of the lease-deed he does not carry on mining operations, then he must pay the dead rent as per the schedule since royalty cannot be demanded from him. It is only after the minerals are extracted that the royalty has to be paid. But, even then if the amount of dead rent is more, it is the dead rent that would be recovered and not the royalty, as per the proviso to section 9-A (cited supra). 8. Mr. Charde, learned Assistant Government Pleader, was not in a position to show as to how the petitioner would be liable to pay the dead rent even though the land under lease has not been handed over to him in spite of its constant attempts in this behalf. Having regard to these facts, we are satisfied that the demand made by the respondents for recovery of Rs. 79,980-90 as per notice dated 11-3-1986 (Annexure U) is not justified. It is accordingly quashed. The petition is allowed and the rule made absolute in the above terms. Petition allowed. -----